Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required.
By David García Sarubbi
The Mexican constitution is one that contains not only a list of civil rights, but also a declaration of social rights, and both are considered rules of decisions, perfectly justiciable under any court of law. This is important because this year the Mexican Supreme Court ruled in favor of a woman who had been denied an abortion alleged to be necessary to preserve her health in a public hospital. The Court sided with this claim after concluding abortion is covered by Constitution as interpreted by the Court.
So being the ground of such a ruling, it seems important to take into consideration some things about the doctrine of justiciability of the right to health in Mexico. In order to protect it, there are different systems funded with public money to provide services to the community. Nonetheless, the most important systems of health care are those funded with additional contributions from workers, which account for other rights also provided by these institutions, such as pensions for retirees as well as unemployment, accident, or life insurance.
Together, the public funded and the private/public funded systems provide the most of health care services to the population, so they have been the main stage of litigation pertaining the scope of the fundamental right to health. This is how the recent abortion case made its way to the Supreme Court. As those services are provided by institutions created and regulated by law, whose doctors and employees are paid by the government, public hospitals are considered to be public agents. What they do falls under the heading of state action, and hence, subject to challenge in judicial review.
So yes, judges are called to intervene and police public policy made in health law. The Supreme Court, as final interpreter of the Constitution, has the power to set aside legislation regulating health law and to declare what obligations hospitals must discharge in direct accordance to the Constitution.
Of course, doctrine built upon that right has encompassed declaration that some treatment might be demanded by the Constitution. Yet, the Court has made clear it will review with deference to the knowledge of agencies to decide this; that’s why Mexico is not an example of judicial activism in the field, like Colombia or South Africa. In my view, more important than these cases are those where the Court has said this fundamental right entitles liberties and strong protection against discrimination. So many of the most important cases of health law relate to forcing the government to include groups in the providing of services well established before in favor of other groups, or to respect some privacy rights when doing so.
Actually, the abortion case is about extending an administrative ruling that prescribed public hospitals to practice abortion when risking life to cases where only health was at risk. The Court cited government when saying there must be abortion in the public health care system. It only ruled on how unequal it was to recognize that right only in the most stringent extreme of risking life and deny it when health is at risk. This evaluation of health and life was non-permissible under the Constitution.
However, this framework does not allow thinking that in Mexico there is a strong tradition of judicial review of social rights. There are two main reasons this is not the case.
In first place, our Constitution was enacted in 1917; it was the first of its kind to entrench what today we call social rights —to work, to education, some rights on collective property— yet the Supreme Court was reluctant to conceive of them as justiciable. Since social rights first demand legislation as a way of implementation as well as the spending power of government, issues questioning the meaning of the Constitution fell as political questions. It was after the Second World War that social rights were given normative content. They were adjudicated, but the Court reviewed legislation and state action giving a great deal of deference to government —and still it does. It was in the last quarter century that the Court has been developing a more robust doctrine of justiciability of social rights. Deference is still due to state actors, but the Court applies a more exigent scrutiny when there are discrete minorities involved.
The second reason for this slow development of the Court doctrine was the system of judicial review in place for most of the last century in Mexico. Opposite of the U.S., only recently has the Court recognized the power of every judge to set aside legislation repugnant to the Constitution (since a ruling casted in 2011). Before that, in Mexico there was only “Amparo,” that is, a special cause of action regulated in the Constitution for persons to challenge state action for contradicting the Constitution.
This Amparo had very technical rules pertaining standing, ripeness, and mootness, so it was difficult for a person to take his case all the way to judges to challenge a denial of services of health care, for example, since it was very likely the injury turned too ripe for that moment —because it was irreversible, or too moot to be remote. These obstacles have been removed progressively by recent amendments looking to make this cause of action more accessible.
In this sense, the recent ruling of the Supreme Court not only is important in Mexico because it recognized a right to abortion under the heading of the right to health, but also because it pushes further the scope of the doctrine of justiciability of the Constitution.
David García Sarubbi is a law clerk in the Supreme Court of Mexico and professor in constitutional law at Instituto Tecnológico Autónomo de México (ITAM).